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New Battlefields/Old Laws: The Next Steps in Counterterrorism

28/12/2014
| by ICT Staff

Terrorists are evolving and their methods are changing, so counterterrorist tactics need to evolve and improve as well. The law is important because it (needs to) define terrorism, and explains the cases in which states may use force legitimately. There is a difference between an individual who belongs to a terrorist organization and the organization itself, and the law must be clear on when and where both of these categories may be targeted. There is a rising trend amongst terrorists to increasingly target military personnel, and this complicates either the definition of terrorism or the classification of certain organizations as terrorist. The use of force is more limited in democratic countries, and these nations are held to a much higher standard internationally.

Co- Chair: Prof. William BanksProfessor, Public Administration and International Affairs, Board of Advisors Distinguished Professor (Law), Founding Director, Institute for National Security and Counterterrorism (INSCT), Laura J. and L. Douglas Meredith Professor for Teaching Excellence, Syracuse University, United States of America

Co- Chair: Dr. Daphné Richemond BarakSenior Researcher and Head of the International Law Desk, International Institute for Counter-Terrorism (ICT), IDC Herzliya, Israel

Prof. Laurie BlankClinical Professor of Law, and Director, International Humanitarian Law Clinic, Emory Law School, United States of America

Col. (Res.) Ronen CohenAssociate, International Institute for Counter-Terrorism (ICT), IDC Herzliya and Former Director of the Terrorism Desk, Military Intelligence Directorate, IDF, Israel

Prof. Geoffrey CornProfessor of Law and Presidential Research Professor, South Texas College of Law, United States of America

Prof. Jennifer DaskalAssistant Professor of Law, American University Washington College of Law, United States of America

Dr. Matthew LevittDirector, Stein Program on Counterterrorism and Intelligence, The Washington Institute for Near East Policy, United States of America

Prof. Nathan SalesAssociate Professor of Law, Syracuse University College of Law, United States of America

Prof. Michael SchmittDirector, The Stockton Center, United States Naval War College, United States of America

Prof. William BanksProf. Banks introduced the workshop and said he believes the natures of conflicts are continuously changing and evolving, but that the government is managing and that progress will continue to develop.

Dr. Daphné Richemond BarakDr. Richemond Barak notes that we need to identify an enemy from a U.S. perspective, then one from an Israeli perspective. It is important to focus on the future of counterterrorism, although it is difficult to identify the enemy.

Dr. Matthew LevittDr. Levitt said believes that it has become increasingly more difficult to identify which groups the terrorists are involved with after 9/11. The evolved digital capabilities of Syria and Iraq make identifying groups more difficult. He believes that they are engaged in defensive jihad and that there is a need to develop capabilities to counter. He believes new counterterrorism methods are vital, just as new methods of terrorist finance have been established. Destroying the airport runways could hamper the terrorists’ constant supply of goods, but there is no intervention because there is a lack of “infrastructure.” Also, there are differences between Hamas and ISIS that are important to understand.

Prof. Laurie BlankProf. Blank believes that law is about definitions and categories in many ways, and about tools in other ways. One way to describe the U.S. perspective is that we are against all extremists. Force doesn’t have to be the only tool of choice to act. Although some believed there wasn’t going to be state-on-state conflict in the future, recently Putin declared wishes to claim Crimea. When can a state use force, against whom, and where? Does an evolving nature of threats change how we look at this question? Legal advisors need to answer the following questions: what is the threat, how is the threat defined, what is extremism, how do you beat it, and how do you know you beat it? Armed conflict is not only a state fighting individuals, but also an enemy and details that need to be uncovered. How does the U.S. know who is ISIS? There is a big difference with who is a part of the group versus who is fighting with the group and a legal difference of when they can be targeted. There needs to be identification of who is in the group and the role that they play. The U.S. has taken a very broad view of who is posing a threat; do we need to view terrorists as a group, or do we need to look at them differently? This is a tough question when the link isn’t clear. Essentially trying to force everyone into a group to identify them is part of the challenge. In a state-on-state conflict, there is a clear war course of attacking enemy infrastructure, communications, and networks. With a terrorist organization, which doesn’t necessarily have infrastructure or a single state host, the solution becomes more difficult.

Col. (Res.) Ronen CohenCol. (Res.) Ronen Cohen built a new model where the basic premise is about human resources and other specifics. The first part discusses weapons, the second deals with money, and third engages logistics. First, there needs to be information about the organization, the details, and the policies. This should be followed by data about an early warning, followed by counter-terrorism. Col. (Res.) Cohen describes the five cubes method. If there is an understanding of the way Hamas grows every month, then people can understand how to fight it. There is opportunity with constraints and interests. Another cube is clothing, where he says the clothes cover the body but shows the soul. The next cube is behavior, and the need to understand from each cube what the activity is before the attack. The last cube is to stop killing the mosquitoes but to drain the swamp. Analysis is the movement of the cubes, and weapons is the unit. The sides of the cube include smuggling, transferring, purchase, and manufacturing. With money, the cube consists of couriers, money laundering, charities, bank accounts, and emerald money.

Dr. Daphné Richemond BarakDr. Richemond Barak said she believes that there are two emerging concerns that are not spoken about by the legal community and deserve more attention. First is the kind of enemy the U.S. is dealing with, and second is the possibility of a trend by terrorist organizations to commit to targeting military members. There are more terrorist groups acting like governing authorities, such as Hamas and Boko Haram, that are controlling northern Nigeria, as well as ISIS controlling parts of two states and providing social services. Hezbollah is gaining more power within the Lebanese government, and this has consequences in the legal department. It is difficult to differentiate the police force from the military within a group like Hamas. Two groups in the Sinai acknowledged that they are targeting the military personnel, and the Taliban has also made such statements. The question is, what gives these groups the terrorism label when they target military personnel? Perhaps there needs to be acknowledgement that the definition of terrorism is changing. One of the issues raised by this subject and by recent events in the past decade and a half is the concern of law getting in the way of policy. These things must be done concurrently post-9/11.

Prof. Jennifer DaskalProf. Jennifer Daskal began by arguing that according to the GRC, conflicts are geographically limited. A conflict against a non-state actor extends to where the actor is, and to the individuals who are members of the forces. This raises the concern that members who fit this very broad definition can be targeted wherever they are. However, these rules are malleable and can be changed in the context of the conflict. There is nothing to stop the U.S. from attacking the target in London if the UK allows it. There is nothing in theory to stop the U.S. from putting soldiers on the ground in that case. A key and necessary part is boots on the ground whether it is the U.S. or the other nations. In areas of protracted conflict, residents are on notice that they are in danger. In May of 2013, Obama announced that targeted killings in areas of non-hostility are only done in cases where noncombatants are not in danger. Dr. Daskal suggests that this is law rather than policy, that there should be independent reviews for all long-term detainees, and that there should be ex-post reviews on targeted killings.

Prof. Geoffrey CornProf. Corn said he believes that the international world will always demand more from democratic states that use military force. It’s interesting to note that one country that attempts to follow the law is condemned more than the neighbor that attempts to always violate the law. When a state is fighting on its own territory, the stakes are the different. Prof. Corn was curious as to why Hamas fires missiles knowing that they are not getting through. They understand that after the first few salvos get knocked out of the air, not many others will get through. Even though they are using resources, they are gaining intelligence. For every measure, there is a counter-measure. If the military is fighting a non-state opponent, then everyone looks like civilians and there is a heightened duty to make sure that every target is not civilian. The IDF practice is to be forward leaning. The tactical instinct of the commander is to go against dropping leaflets, which would ruin the element of surprise. The next time, the commander would ask why they should give warning if the international community does not reward the effort. Prof. Corn believes it is not to prevent casualties, but rather to prevent risk due to the proportionality rule. He thinks another area that needs more thought is a neutralized zone, which is mentioned in the Fourth Geneva Convention. Military commanders are not robots; they are human beings with morals. Compliance with the law is not only about international legitimacy - using artillery in a civilian area depends on the situation. Telling a commander not to use artillery is severely limiting, and does not account for situational nuance and human behavior.